Author Archive for Jens David Ohlin

The ICTY Trial Chamber announced today its verdict in Prosecutor v. Ratko Mladić and has found the defendant guilty and sentenced him to life in prison. (The judgement summary, which was read aloud in court, is available here. I don’t see a link to the full judgement; if someone else has it, please provide a link in the comments below.) Although this outcome was widely expected by most court observers, the details of the decision merit some discussion.

First, the Chamber found Mladić guilty of genocide in Srebrenica but not of genocide in the other provinces. According to the court (from the oral summary):

The Chamber then examined the specific intent of the physical perpetrators. The Chamber found by majority, Judge Orie, dissenting, that the physical perpetrators in Sanski Most, Vlasenica, and Foča, and certain perpetrators in Kotor Varoš and Prijedor Municipalities intended to destroy the Bosnian Muslims in those Municipalities as a part of the protected group. The Chamber then considered whether the targeted part constituted a substantial part of the protected group, and concluded that the Bosnian Muslims targeted in each municipality formed a relatively small part of the protected group and were also in other ways not a substantial part. Consequently, the Chamber was not satisfied that the only reasonable inference was that the physical perpetrators possessed the required intent to destroy a substantial part of the protected group of Bosnian Muslims.

This finding is consistent with other cases where the ICTY has failed to conclude that the crimes committed in these municipalities amounted to genocide. But the genocide finding for Srebrenica was reaffirmed in Mladić.

As for modes of liability, Mladić was found guilty of participating in four joint criminal enterprises. As far as I can tell from the court’s oral summary, the chamber convicted Mladić in each case of JCE I, meaning that the chamber concluded that the defendant shared the intent to carry out the crimes of the JCE (its objective). There is no reference to JCE III, i.e. liability for crimes committed by other members of the enterprise that fall outside the scope of its design but which were reasonably foreseeable. It seems as if the court felt it unnecessary to rely on the controversial JCE III, preferring instead to simply rest its conclusions on the more stable and secure JCE I theory. (If I have misread the judgement summary in this regard, please correct me in the comments.) If this is what happened, the court has preserved JCE III as a viable theory by removing an opportunity for judicial scrutiny of the doctrine at the appeal level.

The four joint criminal enterprises were described in the following manner:

First, an Overarching JCE, which had the objective of permanently removing Muslims and Croats from Serb-claimed territory in Bosnia-Herzegovina, through the commission of the crimes charged in the indictment, including Genocide, Persecutions, Extermination, Murder, the inhumane act of forcible transfer, and Deportation.

Second, a Sarajevo JCE, which had the objective of spreading terror among the civilian population through a campaign of sniping and shelling as charged in the indictment including through murder, acts of violence the primary purpose of which is to spread terror among the civilian population and Unlawful Attacks on Civilians.

Third, a Srebrenica JCE, the objective of which was the elimination of Bosnian Muslims in Srebrenica through the crimes charged in the indictment, including Genocide, Persecutions, Extermination, Murder, the inhumane act of forcible transfer, and Deportation.

Fourth, a Hostage-taking JCE, the objective of which was taking UN personnel hostage to prevent NATO from conducting air strikes against Bosnian-Serb military targets through the crime of Taking of Hostages, as a war crime.

One question I have is the relationship between the “Overarching JCE” and the other JCE. This isn’t exactly spelled out in the summary and it will be interesting to read the full judgement to understand their exact relationship. Are the second, third, and fourth JCEs merely sub-components of the overarching JCE? Or are these overlapping JCEs? How should we understand their geometric inter-relation? Furthermore, does describing one of the JCEs as “overarching” have some consequence for the application of the doctrine to the facts of this case? I would welcome thoughts from readers on this point.

Finally, with regard to the hostage-taking JCE, it is interesting to read the chamber’s conclusion that the defendant “intended the objective of the hostage-taking joint criminal enterprise, to capture UN personnel and detain them in strategic military locations to prevent NATO from launching further air strikes. The Chamber found that the Accused’s statements, in particular with regard to the fate of UNPROFOR personnel, were tantamount to having issued threats to continue to detain or to kill UN personnel, and that these threats were meant to end the air strikes.”

I also found it interesting that the chamber declined to give the defendant a reduction from a life sentence just because the defendant was acquitted on one count (genocide in the municipalities). Rather than looking at the significance of that acquittal for purposes of determining the appropriate sentence, the chamber looked to the significance of the convictions to determine Mladić’s blameworthiness.

I have filed an amicus brief in the Al Bahlul case. Al Bahlul was charged and convicted before a military commission for multiple offenses including conspiracy. On appeal, several of the charges were thrown out, but the conspiracy conviction remains and is the subject of his cert petition before the U.S. Supreme Court. Although the government once held the position that conspiracy is an offense under the international law of war, the government eventually switched legal theories and argued that conspiracy is a domestic law offense triable before a military commission. As should be clear from the excerpt below, my own view is that the jurisdiction of military commissions is limited to international offenses under the law of war.

Here is a summary of the brief’s argument:

In this case, petitioner Al Bahlul was convicted of multiple offenses before a military commission, including conspiracy, solicitation, and material support for terrorism. See United States v. Al Bahlul, 820 F. Supp. 2d 1141, 1167, 1183 (U.S.C.M.C.R. 2011). On appeal, the U.S. Court of Appeals for the D.C. Circuit vacated the convictions for solicitation and material support. Al Bahlul v. United States, 767 F.3d 1, 5 (D.C. Cir. 2014). The sole remaining charge at issue in this litigation is Bahlul’s conviction for conspiracy.

In Hamdan, Justice Stevens’s four-vote plurality opinion concluded that a stand-alone conspiracy charge was not prosecutable at a military commission because it was not a violation of international law. Hamdan v. Rumsfeld, 548 U.S. 557, 604 (2006). In this case, however, the U.S. government has not relied on the classification of conspiracy as an international law offense. Instead, the government maintains that military commissions have jurisdiction to adjudicate the charge of inchoate conspiracy, despite the incongruity between that criminal offense and international law.

In proceedings below, counsel for the U.S. government has advanced various arguments for why military commissions have jurisdiction to try conspiracy – a domestic offense – even though the Supreme Court has made clear in prior decisions that the jurisdiction of military commissions is limited to the adjudication of violations of the law of war. These arguments all rely on the implausible suggestion that the “law of war” straddles the divide between international and domestic law, and that there exists a little-known domestic body of law called the American common law of war. According to the government, conspiracy is consistent with this newly re-discovered American law of war because the offence is entrenched in the common law, the legal culture of the United States, and Civil War commission practice.

This domestic “law of war” argument is problematic for multiple reasons. Although prior cases in this Court and elsewhere include references to something called the “common law of war,” see, e.g., Quirin, 317 U.S. 1, at 34, it would be legally and historically inaccurate to conclude that this phrase refers to a domestic body of law. Rather, an analysis of every mention of this phrase over the last 200 years demonstrates that the “common law of war” refers to international law – a law “common” to all mankind.

Determining the proper scope of the “law of war” in this context – i.e., whether it is international or domestic – has large implications for establishing the outer contours of the jurisdiction of military commissions. Given that military commissions operate outside of Article III, without the right to a jury trial protected by the Fifth and Sixth Amendments, the resolution of this case is essential for demarcating the proper boundaries between a civilian system of criminal justice and a military system for prosecuting detainees captured pursuant to the laws of war. For these reasons, it is imperative for this Court to grant certiorari to resolve this fundamental federal question pursuant to Rule 10(c).

As I write this, the ASIL annual meeting is conducting a well-timed, previously unannounced panel discussion about the legality of the missile strikes against Assad’s airbase in Syria. In addition to Harold Koh (Yale Law School), who has argued in support of humanitarian intervention, the speakers include moderator Catherine Powell (Fordham Law School), Jennifer Daskal (AU Washington College of Law), Steve Pomper (US Holocaust Memorial Museum), and Saikrishna Prakash (UVA School of Law). I’m sure that it is/was a terrific panel and I’m sorry to have missed it.

I want to take this opportunity to step back and collect some thoughts about why I disagree with so many of the arguments against humanitarian intervention. I have already articulated the specific legal arguments about article 51 here, but there is a deeper issue about the nature of the UN Charter and the goal of international law itself.

Many writers speaking out against humanitarian intervention have noted, as one piece of their argument, that humanitarian interventions will weaken the prohibition on the use of force and will likely lead to more international conflict. They view humanitarian intervention as a destabilizing force.

In these arguments, the goal of reducing international conflict, or reducing the number of cross-border military interventions, is elevated to the most important principle in the UN Charter and the international legal system as a whole. The goal is, in other words, to eliminate or reduce war as much as possible.

On deeper inspection, however, this asserted goal is really about reducing only one kind of war, international armed conflicts. The Charter regime on the use of force (article 2 combined with Chapter VII and article 51) is designed to reduce or eliminate the number of sovereignty violations caused by international war.

This articulated goal has deep roots in World War II. Indeed, one could point to Nuremberg and the tribunal’s conclusion that crimes against peace (aggression) were the supreme international crime because they contained within them the seeds of the other international crimes. The lesson, apparently, is that stopping international conflicts is the most important goal of the international legal system.

Unfortunately, I think this principle, which is just one principle among many, has been taken to an extreme level, and fetishized to the point where other noteworthy principles are devalued.

We should never forget that preserving international peace has mostly instrumental value. Protecting the integrity of states and their domestic arrangements has little value in and of itself. If the states and their domestic arrangements are fundamentally unjust, then preserving international peace is merely protecting those unjust arrangements.

To make my point, consider a “perfect” world without a single article 2(4) violation. Every state respects the borders of all other states and never launches a military assault against them. Each state is inwardly directed. But internally, each state is viciously repressing and killing its own civilians and subjecting them to unimaginable horror. Would this be a “perfect” world from the perspective of the UN Charter or from the perspective of international law generally? From the sole perspective of article 2(4), this world is indeed perfect. But it is far from perfect — it is a disaster. Protecting the sovereignty of each state has instrumental value because it allows states to flourish. But if sovereignty is simply preserving injustice, we need to consider that there are other values at stake, other values that are promoted by international law.

My point is that many of these other values or principles are embodied in the UN Charter. When I read the Charter, I see a document that cares about preserving international peace, but it also cares about international security--which is something far broader. And I don’t think that international security is promoted and enhanced when we give a free pass to allow governments to mistreat their own citizens, and treat this as a “lesser problem”–subject only to non-military measures– than the problem of international conflict, which is subject to unilateral military measures.

It may be time to rethink the Nuremberg “assumption” that crimes against the peace are the supreme international crime. World War II was the era of the IAC, which was responsible for most of the evils of the world. We now live in a different era, the era of the NIAC, which are responsible for most of the evils in the world. This second vision of the UN Charter recognizes that NIACs pose a greater threat to international security.

The UN Charter must do more than simply ensure that soldiers do not cross international borders. Even when every soldier stays within their own state, all is not well in the world.

In a comment to my earlier post on humanitarian intervention and natural rights, Adil Haque asks me the following question:

Can States voluntarily make binding agreements that curtail their natural rights of legitimate defense for the sake of greater collective security?

Here’s my answer. The positive law can expand the natural right but cannot curtail it. To explain my answer, let’s think a little bit more about domestic law.

Consider the right of self-defense under domestic criminal law. Suppose a state decided to repeal its criminal law defenses of self-defense and defense of others. Imagine that the state had an extensive policy discussion about it and determined that the police should be the exclusive vehicle for the deployment of protective force, in order to maintain security within the state. Here is the explicit consequence of that legal decision: if an attacker comes to your door and starts attacking, you are required to notify the police so that they may come to exercise protective force on your behalf. If the police refuse to come, or do not come in time, you are not legally permitted to exercise defensive force on your own behalf.

Now suppose that the attack occurs, and you exercise personal defense in order to save yourself from the unlawful assault. However, self-defense was repealed. So the public prosecutor charges you with murder. You clearly committed a killing and the defense was repealed. You are facing a mandatory sentence of life in prison or the death penalty.

Now imagine that you are the trial judge hearing this case as a bench trial. What to do? If you convict the defendant, you are sending him to jail for the rest of his life–or worse yet condemning him to execution.

I think the correct answer to this puzzle is that the defender has an inherent right to defensive force, and the positive law cannot curtail this right. I would acquit the defendant on that basis. What would you do? If you say, well, the positive law has eliminated self-defense, so the defendant must be convicted — my only response is that I hope I don’t get you as a judge if I’m ever in this situation.

One possibility to resolve this quandary is to think of it as a case of civil disobedience. As Marko Milanovic and others have noted, the classic theory of civil disobedience (Gandhi, Thoreau, King) requires that the disobedient actor accept his or her punishment. I find this avenue most convincing when the disobedience is an act of protest and when the punishment is relatively modest. In the case I am describing, neither of these is true. The punishment is draconian, and the crime was not an act of protest — it was an act of survival.

Now you might say that the situation that I have described is fanciful and not likely to happen. True. But I think it yields two insights. There may be situations when the positive law runs out, and natural law begins. The second insight is that this only happens in truly extreme cases–cases that are at the margins of the law and rationality and sanity.

But if you think about it, the situation of humanitarian intervention is not all that different — it’s a truly extreme situation, where the positive law runs out and recourse to the inherent rights of defensive force ought to apply. I think that as international lawyers, from the safe distance of the ivory tower, we are often too likely to see such horrible dilemmas as “normal” problems of international law. But if we imagine it from the other side, i.e. the victim of the Rwandan genocide pleading for outside assistance to repel a murderous rampage, you come to realize that the dilemma of humanitarian intervention is perhaps just as extreme a situation as my hypothetical criminal law case described above. Indeed, I think it is not radical to suggest that a genocide is, in fact, far more extreme than my hypothetical, which only involved the fate of a single homeowner struggling to defend himself against an unlawful attack. Multiply that dozens, hundreds, thousands, hundreds of thousands of times, and you get the real dilemma of humanitarian intervention for modern international law.

Everyone seems to have lined up against humanitarian intervention this week. I’m not sure if the proponents of intervention have changed their mind, or if they are keeping quiet, or if they never existed in the first place. Either way, I want to be clear — if it isn’t obvious already from my prior scholarship — that I support a limited right of humanitarian intervention in certain contexts. So far, the few that have supported humanitarian intervention recently include Harold Koh, as well as Charlie Dunlap. (In the past, others have argued for it as well.) By my account, the Syrian situation can and should qualify as a lawful humanitarian intervention.

However, as I indicated in a series of tweets today, I think it is a mistake to focus humanitarian intervention arguments on so-called exceptions to the UN Charter regime on the use of force–exceptions flowing from customary international law. All of these arguments run into the same problem: how does custom amend the UN Charter? It makes the argument vulnerable to the objection that the customary exception is really a backdoor way of amending the Charter without going through the difficult process of amending the Charter.

A far better and more fruitful exercise is to examine article 51 of the UN Charter more closely. Article 51 preserves the inherent right of individual or collective self-defense, or what the French-language version of the Charter refers to as the droit naturel de legitimate defense. The right to legitimate defense (which covers both self- and other-defense) is a natural law right. It isn’t created by the UN Charter or by positive law at all. It is inherent because it flows from natural law, and article 51 simply refers to it.

Modern lawyers are not accustomed to answering uncomfortable questions about where natural or inherent rights come from. They can’t come from the positive law, otherwise they wouldn’t be inherent. The whole point of being inherent is that even if the positive law denied them, they would still exist. That’s what inherent means. In other words, there’s an area of the law that endures after the positive law runs out. You might find this truth to be inconvenient or annoying or quaint — but it is right there in article 51. So even lawyers committed to positivism and the text of article 51 should admit that some rights under international law are so fundamental that they flow from beyond the positive law. The positive law could try to take them away but the right would still endure.

(I should add that the concept of inherent rights was fundamental to the founding of America. One of the reasons the U.S. declared its independence from England was because England was violating the inherent rights of Americans. In the grand tradition of Locke and other social contract theorists, the colonists believed that the sovereign had a fiduciary obligation to its subjects and when that obligation was betrayed, the colonists could exercise a right of rebellion in order to ensure their inherent rights.)

Another piece of the puzzle is that international lawyers are too focused on state sovereignty to the exclusion of any other legal categories. Peoples have rights too under international law, and their most primary right is the right to self-preservation, a right that is protected not only by the concept of self-determination but also the right to be free from genocide and crimes against humanity. Nothing in the positive law can take away the right of the Syrian people, under natural law, to resist their own annihilation. I’m not sure that anything in Article 51 automatically prioritizes the Syrian government’s claim to state sovereignty over the right of the Syrian people to self-preservation and the right of other states to exercise legitimate defense on their behalf.

I should also note that there are other avenues to explore in the Syrian case. Assad only controls half of the country, so I don’t know why even under a strict “sovereignty” approach he should have a monopoly on deciding who gets to intervene in Syria. He only controls half of his country. (Once you take into account ISIS controlled territory, it might be even less than half). So I don’t know why international law should privilege his speaking for the Syrian people when his de facto control over its territory is so degraded and he is gassing his own citizens. It seems equally plausible to say that the Syrian rebels, given their control over territory and their exercising of inherently governmental functions, should be able to speak for themselves.

Of course, it would help the U.S. argument if it recognized the Syrian rebels as the legitimate government of Syria and then pursued a consent-based argument. This approach would no doubt anger Assad and the Russians, but launching Tomahawk missiles has already angered Russia, so that doesn’t appear to be a political or diplomatic constraint at this point in time. I wish the State Department would pursue this initiative. I imagine that other states would welcome the approach and would follow our lead in recognizing the Syrian rebels as a legitimate government.

(A final approach would be to argue for partition and suggest that the Syrian rebels have created a de facto state, which could be recognized under international law, effectively transforming the Syrian conflict into an IAC. I understand that this option is disfavored for several reasons, in part because it concedes that Assad would remain in control of the legacy Syrian state).

Let me make a final point. All things considered, we should interpret the law to make sense. Interpreting article 51 to require everyone to sit on their hands while a dictator commits genocide or wipes out every last member of a protected ethnic group just doesn’t make sense. And that’s the reading of article 51 that opponents of humanitarian intervention are advancing. International law disfavors existential annihilation. Lawyers shouldn’t fetishize state sovereignty and elevate it to the exclusion of all other principles. If the Syrian people have the right to resist their own destruction, we have the right to assist them.

I am very sorry to report the shocking news, that many have already seen on Twitter, that Håkan Friman has passed away, much too young.

Anyone involved in international criminal justice surely knows Håkan’s name, and more likely than not, knew Håkan personally. In addition to his many many academic publications on international criminal law (including the well-known Introduction to International Criminal Law and Procedure by him, Robert Cryer, Darryl Robinson, and Elizabeth Wilmshurst), Håkan was a Judge on the Solna District Court in Sweden, and also held several academic appointments along the way. Håkan also had a distinguished career with Sweden’s ministry of justice and was a key member of Sweden’s ICC delegation to the Rome Diplomatic Conference, where it all began. He was a mainstay of academic conferences on multiple continents. I hosted him at Cornell once for my course called the Jurisprudence of War, where he led a masterful session on the crime of aggression and the Kampala amendments. On more than one occasion, his name came up in conversations I had with others when we discussed ideal candidates to be a judge on the ICC some day.

More importantly, Håkan was an absolute gentleman to every person in the profession. It didn’t matter whether you were the most junior of doctoral researchers or the most senior jurist at an international tribunal. He was equally kind and generous to everyone.

It is with great sadness that the International Criminal Court learnt of the sudden passing of Senior Judge Håkan Friman, Head of Division at Solna District Court (Sweden) on Monday, 17 October 2016.

As a former member of the Swedish Delegation on the ICC, a magistrate and the author of many international criminal law publications, Mr Friman made an invaluable and lasting contribution to international criminal justice. Mr Friman had a prominent role in the drafting and adoption of the Rome Statute, as well as in the development of the Rules of Procedure and Evidence and Regulations of the Court. He was also called upon on numerous occasions in an expert capacity to assist in initiatives to enhance the efficiency and effectiveness of the Court’s operations. His commitment, expertise and warm personality earned him countless friends in the field of international criminal justice.

The Court presents its sincere condolences to Håkan Friman’s family and friends in these difficult moments.

Today’s New York Times tells us that the Obama Administration currently has no active plan for holding Islamic State (ISIS) detainees captured on the battlefields of Iraq or Syria. The article makes clear that the lack of a plan isn’t because the Obama Administration hasn’t been thinking about the issue. In reality, the lack of a plan stems from the fact that the Obama Administration refuses to develop one.

Why not? After the fiasco known as Guantanamo Bay, the administration apparently has no interest in getting into the detention business. As in, not just the CIA not getting into the detention business — but the whole government not running a detention facility.

So this triggers an obvious question: Where will the detainees go?

One worry expressed in the article, echoed by former administration lawyer William Lietzau, is that the lack of a detention program might have perverse incentives. Some non-U.S. forces fighting against ISIS might decide that it is better to execute detainees rather than capture them, given the lack of a viable detention plan or facility run by the United States. It doesn’t take an international lawyer to know that executing prisoners, or soldiers otherwise hors de combat, is a war crime (and a particularly egregious one).

So far, the assumption has been that the Iraqi government will run a detention program itself (at least for detainees captured on Iraqi territory). According to the Times:

The potential for a large number of prisoners presenting these kinds of challenges — for somebody — has been raised at planning meetings for months both inside the Obama administration and with coalition partners, according to officials familiar with internal deliberations.

But with no good options, the Obama administration’s default policy is to take custody of the highest-value detainees for interrogation, something the United States has done only twice with Islamic State prisoners. Both were later moved to Kurdish prisons.

The assumption is that the Shiite-dominated Iraqi government or the Iraqi Kurdish forces will hold and, if appropriate, prosecute any suspected foot soldiers and sympathizers they capture.

“We’re not equipped for long-term detention,” said Col. Steve Warren, the spokesman for the American military forces in Baghdad. “We’re not set up here for that, so we’re not in that business.”

It is not clear to me what would happen to ISIS forces captured on Syrian territory by moderate rebels who are also fighting the Syrian government. It doesn’t seem likely to me that they would transfer the detainees to the Iraqi government (but I don’t know), and they surely won’t transfer the detainees to the Syrian government. And it is unclear to me whether these rebels will have the infrastructure necessary to run their own detention program.

The Pentagon has released its report on the U.S. air assault against a hospital in Kunduz, Afghanistan, in October. The picture painted by the Pentagon report is pretty damning. The attack killed 42 people and turned out to be a giant mistake. The U.S. attacked the wrong building.

Initially, some Afghanistan officials suggested that insurgents had taken up positions in the hospital—an allegation that spurred an intense legal debate about whether, and when, the presence of such fighters would render the hospital a legitimate military target under LOAC. The Pentagon report makes clear that these allegations were unfounded. The insurgents were located in a different building, and the U.S. hit the wrong target.

The Pentagon report details a litany of mistakes—not just a single mistake but indeed a “cascade” of errors. The mistakes were clearly evidence of unprofessional behavior and deserving of reprimands. A total of 16 Americans involved in the attacked were officially disciplined administratively.

But was the attack criminal? The problem is that the killing of the innocent civilians was not intentional, it was accidental. As a matter of criminal law, it was either reckless or negligent (more on that later), but the civilian killings were not performed with purpose.

The New York Times had this to say about reckless attacks on civilians:

The failure to bring any criminal charges was “simply put, inexplicable,” said John Sifton, the Asia policy director of Human Rights Watch.

There are legal precedents for war crimes prosecutions based on acts that were committed with recklessness, he added, and recklessness or negligence does not necessarily absolve someone of criminal responsibility under the United States military code.

Is Sifton right about this?

The answer to this question is complicated. I’ve written an entire article about this, Targeting and the Concept of Intent, and I can’t go into that level of detail in a blog post. And even my full-length article did not fully address all angles of the question. The issue is exceedingly complex. But let’s make some preliminary observations.

The Rome Statute includes two particular war crimes of interest to the discussion.

The first provision defines as a war crime:

Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

The second provision defines as a war crime:

Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;

The first war crime is a violation of the principle of distinction: intentionally killing civilians. The second war crime is a violation of the principle of proportionality: causing disproportionate collateral damage.

The problem with applying the first war crime provision from the Rome Statute is that the attack against the civilians in the Hospital building in Kunduz did not obviously involve “intentionally directing attacks against the civilian population.”

Now here is where things get complicated. The word “intentionally” does not have a stable meaning across all legal cultures. As I note in my article, the word intentionally is generally understood in common law countries as equivalent to purpose or knowledge, depending on the circumstances. But some criminal lawyers trained in civil law jurisdictions are more likely than their common law counterparts to give the phrase “intentionally” a much wider definition, one that includes not just purpose and knowledge but also recklessness or what civilian lawyers sometimes call dolus eventualis. Now for present purposes I am going to avoid the difficult controversy of whether dolus eventualis is equivalent to recklessness or a higher mental state (residing somewhere above recklessness but well below knowledge), and for the purposes of this discussion simply assume that dolus eventualis and recklessness are similar mental states dealing with risk-taking behavior.

Now here is the key point. In the civilian tradition, the concept of intent is a wider category that in some circumstances might include recklessness. This equation sounds odd to a common-law trained criminal lawyer, because to an American student of criminal law, intent and recklessness are fundamentally different concepts. But just for the sake of argument, what would happen if intent were given this wider meaning? Could the U.S. service members be prosecuted for intentionally directing an attack against the civilian population because “intentionally” includes lower mental states such as dolus eventualis or recklessness?

I worry about this argument. And here’s why. If intent = recklessness, then all cases of legitimate collateral damage would count as violations of the principle of distinction, because in collateral damage cases the attacker kills the civilians with knowledge that the civilians will die. And the rule against disproportionate attacks sanctions this behavior as long as the collateral damage is not disproportionate and the attack is aimed at a legitimate military target. But if intent = recklessness, then I see no reason why the attacking force in that situation couldn’t be prosecuted for the war crime of intentionally directing attacks against civilians, without the court ever addressing or analyzing the question of collateral damage. Because clearly a soldier in that hypothetical situation would “know” that the attack will kill civilians, and knowledge is certainly a higher mental state than recklessness. That result would effectively transform all cases of disproportionate collateral damage into violations of the principle of distinction and relieve the prosecutor of the burden of establishing that the damage was indeed disproportionate, which seems absurd to me.

The correct result, it seems to me, is to explicitly codify a new war crime of recklessly attacking civilians, and the codification of such a crime should use the word “recklessly” rather than use the word “intentionally.” The idea would be to create a duty on the part of attacking forces and then penalize them for failing to live up to it. (Of course, the scope and content of that duty would then have to be elucidated through case law adjudication.) And the existence of a separate war crime would help signal the moral difference between intentionally killing civilians and recklessly killing them.

If such a hypothetical prosecution were to take place, is there sufficient evidence that the attacking force was reckless in the Kunduz hospital case? Unfortunately yes. Among the factual issues are:

1. The targeting system of the AC-130 gunship was not operating correctly because the gunship had to take evasive maneuvers due to ground fire.

2. The targeting system therefore identified the target as an empty field, which forced the gunship’s crew to locate the correct target visually.

3. Using visual confirmation, the crew located the wrong building—the hospital—instead of the actual building where the insurgents were located.

4. Apparently the crew of the gunship either did not have a list of no-fire targets on board or failed to check the hospital coordinates against the list.

5. Commanders at HQ failed to check the coordinates of the hospital target with the coordinates on their no-fire target list. Had they done so, they would have realized that the gunship was about to engage a no-fire target.

6. After the attack began, hospital workers and MSF officials began frantically calling and texting the U.S. military to stop the attack, but there was a substantial delay before the attack was finally halted.

7. According to the Times report, at least one commander was hesitant to stop the attack when they did not have “situational awareness” (SA) on the ground. Apparently he was concerned that friendly ground forces might remain in danger even as they called off the attack. Of course, the opposite turned out to be true: because they lacked SA, they continued to attack the wrong target without a firm understanding of who or what they were really attacking. Obviously it was a mistake for them to have attacked the target in the first place given that they had no SA.

Does all of this add up to a crime of recklessness? I don’t know. That would be for the fact-finder to decide, but a prosecutor could certainly make out a prima facie case that targeting “best practices” were not followed in this case, leading to the identification of the wrong target, and the loss of 42 innocent lives. But I don’t think this is a Rome Statute case. There may be sound moral reasons to create a new war crime provision for accidents of this type, but I don’t think this conduct falls under the existing law as it stands now.

Just a minute ago, President Obama announced yet again his intention and desire to close the detention facility at Guantanamo Bay. There are no particular surprises here. From what I heard listening to his comments, the plan is merely a renewed push to get Congress to cooperate on closing the prison. Specifically, Obama suggested that the detainees who cannot be released should be transferred to a domestic facility, though he declined to specify which one.

Obama made several points in defense of this plan. He conceded that some members of the public are scared about the possibility of detaining terrorists on US soil, though he noted that we already do that because several terrorists convicted in Article III courts are already housed in federal prisons. Moreover, the federal government has housed them in the US without incident, which demonstrates, according to Obama, that domestic detention is safe.

Furthermore, Obama also tried appealing to fiscal conservatives, noting that the transfers would save the government between $65 milliion to $85 million per year. Over a span of 20 years, that adds up to a $1.7 billion savings. So domestic detention is not only safe, it’s cheaper too.

Obama also announced that although military commissions would remain an option for detainees who are captured on the battlefield in active theaters, for all others, Article III courts are the preferred option for terrorism prosecutions.

There was little discussion of how to clear the political log jam that remains over the fate of Guantanamo, though the President said that he was “clear-eyed” about the challenges of achieving the result he wanted: “The politics of this are tough,” he said, but “this plan deserves a fair hearing.” He noted that even George W. Bush wanted to close the prison.

Of course, one solution, which he did not discuss, would be the use of an executive order to close the Guantanamo facility. I’m very curious to hear readers’ thoughts regarding this possibility. One, I’m interested in predictions about whether he might take such a drastic step in the last months of his presidency. Second, I’m interested in whether it would provoke a miniature constitutional crisis, with Obama using his executive power to close the facility but Congress using its spending power to prevent detainee transfers to domestic soil. What result then?

The New York Times reported yesterday that Adolf Eichmann apparently wrote, by hand, an 11th-hour request to the Israeli President for a pardon of his conviction for crimes against humanity (or commutation of his death sentence). The request was denied and Eichmann was executed a few days later–the only execution ever carried out by the Israeli criminal justice system. The letter had been filed in archives and was only recently rediscovered as papers were being prepared for digitization.

Eichmann’s arguments are disturbing. Here is an excerpt:

There is a need to draw a line between the leaders responsible and the people like me forced to serve as mere instruments in the hands of the leaders… I was not a responsible leader, and as such do not feel myself guilty.

What is striking about the letter, in addition to its obvious obliviousness to his own moral responsibility, is the invocation of the language of “instrumentalities” in the argument. The notion of an “instrument”–a human instrument, analogous to a weapon or other physical object–was incredibly important for Claus Roxin, the German criminal law theorist who used the Eichmann case as an inspiration for the development of his theory of indirect perpetration, called Organisationsherrschaft, which translated means roughly “indirect perpetration through an organized apparatus of power.”

For Roxin, Eichmann was a classic case of someone who used others as instruments to perpetrate his crimes. But instead of simply using other individuals, Eichmann used an organization–which was characterized by the fungibility of its members and the automaticity of its execution of orders received from above. In that sense, the organization became the “through element” by which the order was carried out and the criminal plan brought to fruition by Eichmann.

The ironic thing is that in Eichmann’s letter, he claims that he was the mere instrument–presumably an instrument in the hands of Hitler himself. Obviously the Israeli Court disagreed and viewed Eichmann as something more than a mere instrument–they concluded that he was an active participant and indeed architect of the specifics of the so-called “Final Solution,” the extermination of Jews in Germany, Europe, and beyond.

Although Eichmann’s factual argument is implausible and self-serving (and inconsistent with the facts), it does raise, in the abstract, a complex legal question: how to treat the responsibility of mid-level or upper-level perpetrators who control subordinates below them but who are arguably not at the top of the chain of command. Should Organisationsherrschaft (and the Control Theory more broadly) apply to them? How should we model individual criminal responsibility in this context?

Incidentally, this issue is discussed by Kai Ambos in Volume 1 of his treatise, pages 115-116, especially with regard to a case in Argentina that declined to apply Organisationsherrschaft for similar reasons (the court concluded that it could only be applied to the top-level Junta, and not subordinate officers below the top level). I’m curious what others think of this argument.

As already noted by others (including Kevin Heller, Marko Milanovic, and Dov Jacobs), the ICTY Appeals Chamber has overturned the acquittals of Jovica Stanisic and Franko Simatovic and remanded their case back to the Trial Chamber for the holding of a second trial. I want to discuss two issues pertaining to this decision.

The first pertains to the Specific Direction requirement for remote aiding and abetting of an organization that commits international crimes (yes, Specific Direction, again). There has been a long-standing dispute within the ICTY over aiding and abetting liability and whether Specific Direction is required by customary international law. The Perisic case said it was required, but then a differently composed Appeals Chamber disagreed in Sainovic. Now, finally, the Appeals Chamber has stated once again that the Specific Direction requirement is illusory (and hence the do-over for the Stanisic and Simatovic trial).

The unfortunate thing about the Appeals Chamber decision from Tuesday is how little we get in terms of actual legal rationale for the decision. Although the decision is almost 100 pages, only a few pages deal with specific direction. Of those, most are a summary of the positions of the parties in the case regarding specific direction. As for the court’s analysis, it is limited to one paragraph. And the argument in the paragraph itself does not touch the substance of the legal issue at all, and merely states that a previous appeals chamber had rejected the specific direction requirement, so the requirement does not apply. There is no analysis of how to understand precedent when there are contrary Appeals Chamber holdings, and even more distressingly no discussion of the underlying merits of the specific direction question, i.e. actual reasons why specific direction is not a part of the customary international law of aiding and abetting. All of this is left to the dissenting opinions. The court spends almost as much time and space devoted to the pressing legal issue of whether the defendant’s arguments should be rejected because the prosecution complained that the defendants failed to submit photocopies of the law review articles that they cited in their brief.

These facts highlight something that Heller, Milanovic, and Jacobs have already noted: The result was preordained from the beginning, given the composition of the Appeals Chamber and the number of judges who had previously (in the minority) opined that specific direction was not a formal requirement of customary international law. Incidentally, my complaint here is more about the lack of substantive engagement with the underlying issue, and not the result. Although I continue to think about the issue, I have been somewhat skeptical of specific direction for two reasons. First, the requirement seems to me a heightened mens rea standard akin to purpose, and not an actus reus requirement. Second, even if it is a heightened mens rea standard, it seems to me to be a house of cards built upon a strained reading of three words that were originally drafted, as dicta, in the original Tadic opinion, and which do not support the specific direction requirement. That being said, I do concede that there is evidence on both sides of the knowledge vs. purpose debate for aiding and betting under international law.

The second issue is that this case highlights, once again, a substantial defect in the ICTY’s procedural framework: the lack of an en banc hearing mechanism for the Appeals Chamber. Either all judges of the Appeals Chamber should hear all appeals (rather than use panels), or if panels are used, there should be an opportunity, in rare circumstances, to petition the Appeals Chamber for a second appeal to the entire Appeals Chamber sitting en banc. This would ensure that the decisions of the case are not based on the vagaries of the panel’s composition, which seems both arbitrary and unstable. Future ad hoc tribunals (if there are any), should avoid this structural mechanism.

One final point: Stanisic and Simatovic attended the hearing in person, and therefore were detained and placed in custody in The Hague. I find this surprising (their voluntary appearance, not their detention). Anyone have any information on this decision? If they had stayed in Serbia, would they have voluntarily complied with the new arrest order or would they have run? Would the government in Serbia have been willing and/or able to arrest them quickly if necessary? Of course, these are all hypothetical and somewhat moot questions at this point.

Happy Thanksgiving. As those of us in the United States celebrate our Thanksgiving holiday, it is of course imperative to remember that many people outside our country are facing serious problems and perilous circumstances.

In response to the terror attacks in Paris (and in Mali), the government of UK Prime Minister David Cameron has once again called on British lawmakers to authorize the use of military force in Syria. Cameron released a document that not only articulates the strategic necessity for military action against ISIS, but also outlines the Cameron administration’s legal position regarding the legality of the proposed strikes under international law. Unsurprisingly, the argument relies on the fact that the Syria government is unwilling or unable to stop the ISIS threat.

The following excerpt is taken from a longer document released by Cameron and sent to the British Parliament’s Foreign Affairs Committee. Here is the critical section dealing with international law:

There is now a UN Security Council Resolution. Resolution 2249 (of 20 November 2015) has now made a clear and unanimous determination that ISIL “constitutes a global and unprecedented threat to international peace and security”, and called upon Member States to take “all necessary measures … to prevent and suppress terrorist acts committed specifically by ISIL… and to eradicate the safe haven they have established over significant parts of Iraq and Syria.” There is a clear legal basis for military action against ISIL in Syria. The legality of UK strikes against ISIL in Syria is founded on the right of self-defence as it is recognised in Article 51 of the UN Charter. The right to self-defence may be exercised individually where it is necessary to the UK’s own defence, and collectively in the defence of our friends and allies. This reflects the multi-faceted and evolving threat that ISIL poses, and the response that is required to bring that threat to an effective end.

Collective Self Defence of Iraq

On 20 September 2014 the Government of Iraq wrote to the President of the UN Security Council seeking international assistance to strike ISIL sites and military strongholds, in order to end the constant threat to Iraq, protect Iraq’s citizens and, ultimately, arm Iraqi forces and enable them to regain control of Iraq’s borders. The main basis of the Global Coalition’s actions against ISIL in Syria is the collective self-defence of Iraq. The UK is already supporting the Coalition’s efforts to degrade ISIL in Syria as a necessary aspect of effectively bringing an end to ISIL’s armed attack on Iraq. On 21 October 2014, the Defence Secretary announced to Parliament that he was authorising flights of manned and unmanned surveillance aircraft over Syria to gather intelligence against ISIL. There is a solid basis of evidence on which to conclude, firstly, that there is a direct link between the presence and activities of ISIL in Syria and their ongoing attack on Iraq and, secondly, that the Assad regime is unwilling and/or unable to take action necessary to prevent ISIL’s continuing attack on Iraq.

In light of these considerations and the scale of the threat posed by ISIL, military action that is necessary and proportionate to bring an end to ISIL’s attack on Iraq is justified in accordance with the right of collective self-defence that is preserved in Article 51 of the UN Charter. The Coalition has relied on this legal basis for military action in Syria. Numerous States, including the USA, Australia, Canada and France have written to the UN Security Council explaining that they are taking action on the basis of the right of collective self-­defence. In accordance with the requirements of Article 51 of the UN Charter, the UK notified the UN Security Council that it was taking military action as part of the Coalition’s efforts in the collective self-defence of Iraq by a letter of 25 November 2014. The underlying considerations which justified collective self-defence of Iraq for UK activity in Syria in 2014 remain today. The collective self-defence of Iraq provides a clear legal basis for the UK to increase its contribution to the Coalition’s efforts against ISIL in Syria by taking direct military action itself, provided such activity meets the ongoing requirements of necessity and proportionality.

ISIL’s threat to the UK and its attack on our Allies and partners

The threat from ISIL continues to evolve and now goes far beyond Iraq and Syria, as is all too clear from the external attack planning disrupted by the precision UK strike of 21 August (as I reported to the House on 7 September) and the tragic events of 13 November in Paris. For several months now, UK security agencies have been monitoring the development of ISIL’s external attack planning capacity, which seeks to target both the UK and our allies and partners around the world. Resolution 2249 (2015) both condemns the ISIL’s horrendous attacks that have taken place and notes ISIL’s intent and capability to carry out further attacks. It then calls upon States to take lawful action to prevent such attacks. It is clear that ISIL’s campaign against the UK and our allies has reached the level of an “armed attack” such that force may lawfully be used in self-defence to prevent further atrocities being committed by ISIL. As well as the collective self-defence of Iraq, there is therefore an additional legal basis to take action in our own self-defence and that of other allies and partners as well, where they request our assistance. The use of force in self-defence is of course limited to what is necessary and proportionate and we have made clear that we will act at all times in accordance with the law.

February 9, 2018Is International Law International? Continuing the Conversation[This is the last post in our joint symposium with EJIL:Talk! on Anthea Roberts' new book Is International Law International? If you missed any earlier posts here on OJ, all of them are linked at the end of this post. Please be sure to continue th...

February 9, 2018Is International Law....Law?
One of the many reasons I am so pleased that Opinio Juris can host this discussion on Anthea Roberts’ new (and award-winning) book is that it speaks directly to and about this blog’s core audience: students, scholars, and practitioners of interna...

February 8, 2018On Is International Law International? ‒ Where Next?[Paul Stephan is the John C. Jeffries, Jr., Distinguished Professor of Law and John V. Ray Research Professor of Law at the University of Virginia.]
First a disclosure. I have cheered on this project since Anthea Roberts began working on it. We, a...